Law and Disorder: Where Are the Tech Peers?

"If you even give the [Apple v. Samsung] jury the benefit of the doubt, how many here truly understand the complicated mess that is patent and copyright laws in the USA?" asked Slashdot blogger hairyfeet. "You could kill somebody just by dropping the lawbooks for patent law on their heads, and it's the biggest pile of lawyer-speak you have ever seen."

By Katherine Noyes
09/13/12 5:00 AM PT

Well it's been a stressful few days here in the Linux blogosphere, what with
the ruckus going on over in the bordering Apple territories.

For such a small strip of land, you'd never think such a din could emanate from there, and all over a rectangle with rounded corners -- however "creative" and "innovative" it might be.

Sure enough, though, it's been hard to hear ourselves think down at the Punchy Penguin Saloon, where more than a few patrons spent Wednesday deeply absorbed in the brilliantly conceived
Apple iPhone 5 Event Drinking Game.

Just don't expect any early email replies on Thursday -- that's all Linux Girl can say.

From 'Apple' to 'Lawsuit' in a Single Bound

Anyhoo, speaking of Apple, it's only natural to proceed next to the topic of lawsuits, and that's something Linux bloggers have been thinking about a great deal in recent weeks --
for obvious reasons.

It was yet another insightful Open Ballot over at TuxRadar, in fact, that has had tongues wagging.

"Should technical court cases be decided by technical people?" was the title of
the poll, and it has clearly struck home with numerous Linux fans.

So, how about it? Should juries be custom-picked for these kinds of technical cases?

'Samsung Got No Such Thing'

"The judge went through a significant amount of trouble to allot equal time to each side, not taking into consideration that it takes significantly less time to hold up two phones to a bunch of people who don't know anything about technology and say, 'See how much they look alike? It's because they stole from us!' than it does to walk through each aspect of the interface and case design and show convincing prior art," Linux Rants explained.

"A technical judge and a technical jury would have realized this from the beginning," he added. "Add to that at least one jurist has admitted going down the list and granting infringement on anything with a bezel.

"Seriously?!? In the United States of America, we have the right to a jury of our peers, and Samsung got no such thing," Linux Rants concluded.

'Real Issues' vs. 'Nonsense'

Indeed, "there is a good case for this," agreed Google+ blogger Kevin O'Brien.

"People with the background to understand the issues can more readily distinguish between real issues and nonsense," he opined.

"That said, I am looking forward to Braun suing Apple for ripping off their look and trade dress," O'Brien added.

'A Jury of Your Peers'

'After we debated that first patent -- what was prior art -- because we had a hard time believing there was no prior art, in fact, we skipped that one so we could go on faster. It was bogging us down,' said the juror.

"I won't elaborate on this -- if a reader reads this and understands why the comment says it all, then I trust the reader is in agreement," Lim said. "If a reader does not understand, well, that is the problem with a 'jury of your peers.'

"Not everyone is an expert on everything, and this kind of case is terribly technical," Lim concluded. "In fairness, most of the tech media reporting on the patents involved did not correctly outline the issues. As a lawyer, I think I understand the coverage of the patents involved, but really I am not 100 percent sure myself."

'110 Percent Yes'

"If you even give the jury the benefit of the doubt, how many here truly understand the complicated mess that is patent and copyright laws in the USA?" he explained. "You could kill somebody just by dropping the lawbooks for patent law on their heads, and it's the biggest pile of lawyer-speak you have ever seen.

"I've been a geek since the VIC 20 in 1982, yet even I can't make heads or tails out of half of those laws," hairyfeet concluded. "Please, put me down for 110 percent 'yes' on the experts handling that minefield."

'The Number of Issues May Be Huge'

"The problem with Apple vs Samsung was not that the jury foreman was technical, it was that he was a lot less technical than he thought he was," consultant and Slashdot blogger Gerhard Mack suggested.

"I suspect that the right questions weren't asked during jury selection, and I'm guessing this will be something that lawyers and judges pay more attention to in the future," he predicted.

"Technical cases are not involving simple offenses like murder or theft, where a couple of tests are sufficient to decide the matter," blogger
Robert Pogson offered.

A device or process may be affected by dozens of patents," Pogson explained. "Add to that the fact that software patents are an invention of lawyers, and a lawsuit may well be incomprehensible, not because the issues are complex but because the number of issues may be huge."

'It Could Also Hinder'

Attempts by judges to streamline court cases "may actually break the system by preventing a full defense or properly presenting claims," Pogson told Linux Girl. "Even a few claims reaching a jury can be information overload. How are lawyers going to explain years of analysis of the situation to a jury in a few days or weeks?"

Requiring technical competence by jurors "may help, but it could also hinder, as biases will be imported and competition amongst jurors may derail deliberations," Pogson pointed out.

"It may be more important that judges and lawyers gain technical competence to avoid making fools of themselves to the courts of appeal," he concluded. "Groklaw often finds instances where lawyers or judges completely missed some technical detail."

'Legal Issues Are Not Technical Issues'

Indeed, "when you have a jury admitting they didn't even examine the technical issues in a technical case, it makes you think that maybe having the two attorneys competing to find the people they think they can best manipulate might not be the best means of jury selection,"
Hyperlogos blogger Martin Espinoza suggested.

Chris Travers, a Slashdot blogger who works on the LedgerSMB project, took an even stronger view.

'The Basic Protections Would Be Eroded'

One wouldn't want "a jury entirely composed of doctors every time you have a med-mal case, or a jury packed with lawyers on a contract case," Travers explained.

"I wouldn't be opposed to a separate technical jury to decide technical details/facts, but I don't think it should be tasked with deciding non-technical facts or legal issues," he added.

"A jury's role is fundamentally fact-finding, but it is hence political as well -- it determines whose narrative of the story becomes the basis of the judge's decision," Travers pointed out. "The basic protections would be eroded if this is handed to people who are deeply invested in the legal structures related to cases they are tasked with finding facts in.

"Of course, additionally you have questions about which technical people should be involved," he noted. "If you have a bunch of general IP lawyers trying to determine if the GPLv3 was violated, that will be very different than if you have a bunch of software engineers."

Katherine Noyes has been writing from behind Linux Girl's cape since late 2007, but she knows how to be a reporter in real life, too. She's particularly interested in space, science, open source software and geeky things in general. You can also
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